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Trover for cash register. Before Judge Price. Tattnall Superior Court. June 9, 1956.
A retention-title contract signed by the purchaser in his trade name by himself in his individual name is entitled to record where it otherwise meets the requirements of statute, and, after being duly recorded, constitutes constructive notice of the right and interest of the vendor therein as against the purchaser of the property at a judicial sale on execution issued against the purchaser in his individual capacity.
The National Cash Register company filed a trover action for one specifically described cash register against Aubrey E. Sikes in the Superior Court of Tattnall County. The defendant answered setting out that he was the lawful owner of the cash register, having purchased the same at public outcry at a judicial sale before the courthouse door in Glennville, Georgia. Upon the trial of the case the defendant showed that one Allen Roth owed a debt to Sikes Telephone Company of which he was manager; that he took out an attachment against Roth which was levied on the cash register and that he bought the property in at the ensuing sale after judgment. The plaintiff sought to introduce in evidence the retention-title contract under which it had sold the cash register to Allen Roth, in which it was identically described, which contract was signed, "Dixie Service Station by Allen Roth," properly attested, and containing the certificate of the Clerk of the Superior Court of Bryan County (where Roth lived at the time the cash register was purchased) as follows: "I hereby certify this instrument was filed for record in the clerk's office, superior court of said county on the 22nd day of November, 1954, 10 o'clock a.m. and recorded in book no. 16, page 563, this 22nd day of November, 1954." This evidence was excluded over the objection that the name Dixie Service Station was not the name of any person, firm or corporation, that if a trade name, it had not been registered as required by law, and that accordingly the instrument was not entitled to record and if recorded was insufficient to constitute notice to an innocent purchaser. The court thereafter directed a verdict in favor of the defendant. The plaintiff's motion for a new trial, on which error is assigned, contains two special grounds complaining of the exclusion of its documentary evidence and the direction of the verdict.
An undertaking by an individual in a fictitious or trade name is the obligation of the individual. Tuggle v. Bank of Cave Springs, 8 Ga. App. 291, 293 (68 S. E. 1070). Under Code (Ann. Supp.) 106-303 the effect of the Act of 1937 (Ga. L. 1937, p. 804) requiring registration of trade names "shall be that no contract or undertaking entered into by any person, firm, or corporation, whether heretofore or hereafter entered into, shall be invalidated or declared illegal on the ground that the same was entered into in a trade or partnership name not filed or registered in accordance with the laws in force at the time such contract or undertaking was entered into; but all such contracts and undertakings are expressly validated as against any such objection; and no suit or action heretofore or hereafter instituted by any such person, firm, partnership or corporation, whether sounding in contract or tort, shall be defeated because of any such failure to register." Accordingly, the fact that the retention-title contract was signed in a trade name by the owner of such business does not in any wise invalidate the contract. The defendant contends, however, that even so the contract should not have been admitted to record under the provisions of Code 67-111 as follows: "A mortgage recorded in an improper office, or without due attestation or probate, or so defectively recorded as not to give notice to a prudent inquirer, shall not be held notice to subsequent bona fide purchasers or holders of younger liens. A mere formal mistake in the record shall not vitiate it." There seems to be no claim that the instrument was not properly attested or not properly proved genuine before the clerk, but rather that "there was no way for an innocent purchaser to learn who the Dixie Service Station was since there was no record of any such trade name in the county where the defendant lived," and that this constituted the instrument as "defectively recorded."
Since the words "Dixie Service Station" do not import the name of any legal or artificial person, it is obvious from the instrument itself that the obligation was assumed by the person signing the instrument, Allen Roth, in the firm name, and that a person seeing the instrument would be put on notice of Roth's interest therein. The real complaint of counsel for the defendant, therefore, must be taken to mean, not that the clerk of court in any manner defectively recorded the instrument, but that the records were perhaps not indexed or otherwise set up so that he could thereby locate the record of the transaction under the name of Roth. This, however, does not amount to a defective recording of an otherwise valid instrument so as to allow the same to be excluded from evidence. In Thomas v. Hudson, 190 Ga. 622 (1, 2) (10 S. E. 2d 396), it is pointed out that due filing for record of a valid mortgage affords good constructive notice of the instrument as to subsequent purchasers even though the entry is erroneously indexed and the record erroneously made on the wrong books. "The actual recording is the duty of the clerk, and the statute does not contemplate that . . . an erroneous performance of (such duty) shall operate to defeat the grantee who has properly filed his deed." Willie v. Hines-Yelton Lumber Co., 167 Ga. 883 (5) (146 S. E. 901). See also Touchstone Live Stock Co. v. Easters, 172 Ga. 454 (157 S. E. 683). As stated in the Hudson case (p. 627): "This is true even though it be assumed, as alleged by the petition, that the prudent inquiry and search, by the attorney for the purchaser, of the record books . . . would not have disclosed the record of the mortgage."
In Brockett v. American Slicing Machine Co., 18 Ga. App. 670 (90 S. E. 366), it was held that a retention-title contract signed merely "O.K. Cash Grocery" was entitled to record over the objection that it did not appear to be signed by any person, firm or corporation.
"The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property." Code 67-1403. "In order to admit a mortgage to record it must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale." Code 67-105. "No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect." Code 67-102.
The description of the property in the retention-title contract is full and complete and coincides with the description in the trover action. The language is sufficient to create a lien and to specify the debt secured. It is properly attested. Since the signature of the grantee as "Dixie Service Station by Allen Roth" is the use of a trade name specifically permitted by Code (Ann. Supp.) 106-303 the contract is valid; being valid, and meeting the other requirements of the Code sections above set forth, it was entitled to record. Accordingly the trial court erred in excluding this evidence and in thereafter directing a verdict for the defendant.
The trial court erred in denying the motion for a new trial as amended.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
B. D. Dubberly, contra.
C. L. Cowart, for plaintiff in error.
Saturday May 23 02:33 EDT

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